DeNARDO v. THE STATE OF NEW YORK, #2007-010-056, Claim No. 111445

Synopsis

Case Information

JAMES DeNARDO, a Person Under a Disability, by DIANE
DeNARDO, His Court Appointed Guardian

Claimant short
name:

DeNARDO

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

111445

Motion number(s):

Cross-motion
number(s):

Judge:

Terry Jane Ruderman

Claimant’s
attorney:

KEEGAN, KEEGAN, KEEGAN & STRUTT, LLP

By: John W. Keegan, Jr., Esq. Barry R. Strutt, Esq.

Defendant’s
attorney:

HON. ANDREW M. CUOMOAttorney General for the
State of New YorkBy: Jeane L. Strickland Smith, Assistant Attorney

General

Third-party
defendant’s attorney:

Signature date:

April 22, 2008

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

The following papers numbered 1-2 were read and considered by the Court on
claimant’s motion for sanctions and a sanctions hearing was held on
December 5, 2007 wherein testimony was heard and evidence was received:

This claim arises out of an automobile accident that occurred on July 16, 2004
while claimant was a rear-seat passenger in a car driven by Eric
Cueva[1] on Route 115 in Dutchess County, a/k/a
Salt Point Turnpike, approximately 300 feet west of Van Wagner Road. The claim
alleges that the reference markers near the scene of the accident are: 115;
8201; 2047 (Claim, pp. 2, 3). Route 115 is a two-lane roadway with one lane
traveling in each direction. Claimant contends that the accident was caused by
a ridge or drop-off between the paved edge of the roadway and the unpaved
shoulder and that the car’s right tires caught the edge and fishtailed out
of control. The car then veered to the right and hit a tree. The accident
report lists the crash site at reference marker 2047, where the car came to rest
against a tree after losing control through the preceding curve of Route 115
(Ex. 11). The driver was killed and claimant sustained serious injuries.

During the liability portion of the trial of this claim, claimant discovered
that the road history that defendant had provided to claimant during discovery
(Ex. HHHH) had been subsequently updated (Ex. OOO) and that the updated version
had not been provided to claimant prior to
trial.[2] Specifically, on direct examination,
Peter Teliska, New York State Department of Transportation’s (DOT)
Resident Engineer, testified to a repaving which was done in May 2004, prior to
claimant’s accident in July 2004. However, the road history that had been
provided to claimant during discovery ended in 2003 and no additional or updated
documents were provided to claimant which referred to a 2004 repaving.

During a lunch recess, defendant’s attorney telephoned DOT requesting
the repaving records for 2004. Michael Temple, DOT’s Resident Engineer,
faxed to the Court copies of invoices and Daily Field Inspection reports for the
repaving project. The repaving contractor was Avello Brothers and A. Colarusso
and Sons completed the preparation and backfill for the shoulder.

Claimant also argued at trial that the DeNardo road history (Ex. OOO)
appeared to be an altered version of the Cueva road history (Ex. HHHH) provided
to claimant during discovery. Specifically, claimant noted that the Cueva road
history indicated that the repaving went from mile reference marker 2048
through 2120 and 2009 through 2050 and the DeNardo road history indicated
that the repaving went from mile reference marker 2049 through 2120 and
2009 through 2049. It is apparent that the two notations to reference
markers 2049 on the DeNardo road history had both been changed with the use of
“white-out.”[3]

Claimant moved for sanctions based upon defendant’s failure to provide
claimant with the amended DeNardo road history prior to trial. Claimant argued
that defendant’s conduct was willful and contumacious and an attempt to
perpetuate a fraud upon the Court by deliberately manufacturing false and
fraudulent evidence. Accordingly, claimant sought an order striking
defendant’s answer pursuant to CPLR 3126. Claimant also argued that
defendant’s failure was a violation of CPLR 3101(h), which requires
that:

“[a] party shall amend or supplement a response previously given to a
request for disclosure promptly upon the party's thereafter obtaining
information that the response was incorrect or incomplete when made, or that the
response, though correct and complete when made, no longer is correct and
complete, and the circumstances are such that a failure to amend or supplement
the response would be materially misleading.”

Defendant argued that throughout pretrial discovery, claimant never made a
specific demand for repaving records and that the so-ordered subpoena, signed at
the trial preparation conference, referred only to the shoulder; therefore only
the records pertaining to the shoulder were produced pursuant to the subpoena.
Further, upon clarification at trial as to the records claimant sought,
defendant produced the repaving records.

To the extent that this Court’s Preliminary Conference Order, dated
December 12, 2006, referred to “[c]ontracts, plans and specification of
construction to roadway at the site of the accident,” it did not obviate
the need for claimant to serve a discovery
demand[4] regarding those particulars. Nor did
the Court’s Preliminary Conference Order in this case mandate
defendant’s production of specific documents (cf., Crawford v
Liz Claiborne, Inc., 45 AD3d 284 [Preliminary Conference Order specifically
directed that any motions for summary judgment were to be made within 60 days;
specific directive was not ambiguous and defendant’s failure to comply
with the Preliminary Conference Order resulted in summary judgment motion being
considered untimely]).

Additionally, CPLR 3101(h) is not self-executing and noncompliance does not
automatically result in preclusion of the updated or amended evidence. Indeed,
the statute provides:

“[w]here a party obtains such information an insufficient period of time
before the commencement of trial appropriately to amend or supplement the
response, the party shall not thereupon be precluded from introducing evidence
at the trial solely on grounds of noncompliance with this subdivision. In that
instance, upon motion of any party, made before or at trial, or on its own
initiative, the court may make whatever order may be just. Further amendment or
supplementation may be obtained by court order.”

Defendant maintained that its conduct was neither willful nor fraudulent.
Indeed, defendant presented to claimant the DeNardo road history at the
Court’s pretrial marking conference and claimant stipulated that it would
be received into evidence at trial without objection. Apparently, neither
defense counsel nor claimant’s attorney realized, at that time, that the
DeNardo road history differed from the road history claimant had received during
discovery, i.e. the Cueva road history. Thus, defendant argues that the DeNardo
road history was not submitted as an attempt to defraud anyone, but rather it
was submitted as the current and accurate road history relevant to this
claim.

The Court held the trial in abeyance for the purposes of hearing
claimant’s motion for sanctions. The parties submitted memoranda and a
sanctions hearing was held wherein testimony was heard and evidence was received
regarding DOT’s practices in maintaining and producing road histories and
the specific alterations apparent in the DeNardo road history. The Court also
ordered defendant to produce for an in camera inspection prior to the hearing
certain documents related to the Cueva and DeNardo road histories. Upon the
Court’s review, the documents were received into evidence as exhibit GGGG.
Claimant argued that exhibit GGGG further evidenced defendant’s deceitful
and fraudulent manufacturing of evidence. Specifically, a comparison of GGGG,
page 22, with exhibit HHHH revealed that the original copy of the Cueva road
history memorandum was initialed “JD,” handwritten in blue ink next
to John D. Cummins, Acting Resident Engineer, while the photocopy submitted for
an in camera review by the Court bore the initials “JDC” (Ex. GGGG,
p. 2).

Sanctions Hearing

George Kocan testified that he has been employed by DOT for 12 years and has
held his current position of claims coordinator for the past eight years. His
duties include coordinating with the DOT groups within Region 8 to obtain the
documents or records needed to respond to subpoenas or other requests for
documents regarding small claims and Court of Claims cases involving DOT within
the region. The unit consists of two people, himself and his supervisor. Kocan
is the one responsible for gathering all the documents and records. Most
requests for documents are from State investigators or assistant attorneys
general and sometimes from the State’s experts. Requests are usually in
writing, but are also made orally, in which case the response is in writing.
Requests are kept in a claim file which is opened either upon receipt of a
notice of intention, a claim, or a document request. Upon receipt of a request,
Kocan forwards it to the appropriate DOT section, and, upon receipt of the
requested documents, Kocan forwards them to the requester.

Kocan received a request in the Cueva case dated December 13, 2004 seeking
records including a road history, an accident history, and any prior complaints
for the previous three years (Ex. GGGG, pp. 4-5). Upon receipt of this request,
Kocan sent a memorandum dated December 14, 2004 to Residency 8-2, the
appropriate group within Region 8 to respond to the request. Residency 8-2
responded to Kocan’s memorandum on December 27, 2004 with a copy of the
road history (Ex. GGGG, pp.1, 2) and Kocan forwarded the documents to the
requester.

On July 12, 2006, Kocan received a request for documents in this claim from
the assistant attorney general seeking accident records for the previous five
years to be reviewed by the State’s expert (Ex. GGGG, pp. 25-26).

On June 25, 2007, Kocan received a request from claimant’s attorney in
this case with a copy of a so-ordered subpoena dated June 20, 2007 attached (Ex.
24). The subpoena sought copies of records regarding maintenance and
backfilling for the shoulder from January 2003 through November 29, 2004.
According to Kocan, this was the first request[5]
for documents from claimant’s attorney
(HT:23).[6] Kocan explained that he is not
responsible for interpreting what specific documents are being requested
pursuant to a subpoena or which documents are responsive to a request. Rather,
he simply forwards the request or subpoena to the appropriate group within DOT
and, upon receipt of their response, Kocan forwards the documents to the
requester.

Kocan was shown exhibit HHHH, a memorandum dated December 27, 2004 to Kocan
regarding a request for a road history in the Cueva case. Kocan testified that
the exhibit was produced pursuant to a subpoena in this case seeking the
original road history produced in the Cueva case (HT:26). Kocan testified that
the document was obtained from the DOT file maintained in the Cueva case. Kocan
established that the document was an original by noting that the covering
memorandum from John D. Cummins, Acting Resident Engineer, Residency 8-2, bore
the initials “JD” handwritten in blue ink next to his name (Ex.
HHHH). When asked if memoranda are normally initialed, Kocan replied,
“[s]ometimes they are, sometimes they’re not. Sometimes there is no
memo, just the records” (HT:27). When Kocan was asked to compare exhibit
HHHH (the original with the handwritten initials “JD” in blue ink)
to exhibit GGGG, page 1 (a photocopy bearing the initials “JDC”), he
could not explain the discrepancy between the original and the photocopy. When
asked who might have added the initial “C,” he had “[n]o
idea” (HT:32). Kocan testified that he customarily initials his memoranda
“GK” (HT:35); however, when asked if it was customary for DOT
employees to initial their memoranda, he replied, “I don’t
know” (id.). When asked if it was customary for John D. Cummins to
initial his memoranda “JD,” Kocan replied, “[t]o tell you the
truth, I don’t know” (HT:36). He further testified that he had no
recollection of how Cummins signs his name or whether or not he initialed all
his memoranda. Kocan testified that he would not have added the initial
“C” to the memorandum, “I don’t correct anything”
(id.). Kocan noted that, other than the handwritten discrepancy between
the initials “JDC” and “JD,” the documents were exactly
the same.

When asked about the original binder containing DOT’s road history,
Kocan testified that only the Resident Engineer and the Assistant Resident
Engineer have access to the original binder (HT:37). Kocan could not answer any
questions as to whom the road histories were provided because he did not possess
that knowledge. He explained that he is merely the “middle man” who
processes the requests and forwards the information to the requester. When
asked if he observed any white-out changes in the original road history binder,
Kocan replied, “[t]here’s quite a bit of changes, white outs in
their book” (HT:39). Kocan further testified that prior to this case, he
had never been made aware of any road history, which he had previously received,
which had been subsequently updated or corrected with white-out. It may have
been done, but he had not been made aware of it. He testified that road
histories have routinely been requested in thousands of cases.

John Cummins testified that he was a full-time employee of DOT for 37½
years until he retired in April 2007 and was rehired in July 2007 as a permanent
part-time employee. Cummins was the Assistant Resident Engineer in Dutchess
County, Region 8, Residency 8-2, for 23 years. Then, from the fall of 2004 to
January 2005, he was Acting Resident Engineer. In January 2005, the position
of full-time Resident Engineer was filled by Michael Temple. Currently, Cummins
is a traffic investigator for Dutchess County. Cummins testified that:

“[i]t’s kind of like a notebook that we keep records in for our own
reference as to when roads were paved, and we update it so we know when the last
time work was done. It’s like an internal type of a tool that we use.
It’s only basically used by myself and the Resident Engineer.”

(HT:48). He further testified:

“[i]t’s not anything – it’s not like an official –
it’s like – it’s not an official guide or anything. As a
matter of fact, it’s not mandated. That some residencies don’t even
keep it. We keep it in our residency and we use it as a tool. We put down
approximately when roads were paved, and we put down the year, and we put down
basically the reference to where the project took place so in case we want to go
back down the road in future years to find out when a road was paved and when it
should possibly be coming due for new pavement, we’ll have the date. ***
It’s basically like a working – a working tool that we use in our
residency.

***

A lot of times when we fill it out, we’ll fill it out maybe like once a
year, try to remember the different projects that we did. As far as reference
markers, reference markers a lot of times we’ll take off of the proposal
what was supposed to be done versus – as long as we’ve got a guide
to where the project was. It may be off a reference marker. It might be off
one or two, possible like – because the proposal said we were going to go
so far. There might have been a couple extra trucks of asphalt. You might have
continued past what the proposal said you were supposed to do. So therefore,
the reference marker may not be right if you filled it out based on a proposal,
and then if you happen to be out in the field doing something else, you might
say oh, look at this. This is – this is off a reference marker,
let’s correct it, because it really doesn’t mean anything anyway.
It’s a guide. Like I said, it’s ours. It’s our tool that we
use. Not mandated to keep or anything like that, and it works out fine. We use
it every day.”

(HT:53-55). He stated that the original binder has been in use approximately 40
years and recorded mostly paving projects or other substantial changes. It did
not record minor maintenance (HT:72-73).

The Court was presented with the original binder containing DOT’s road
history and, upon examination by the Court and the parties, it was marked for
identification[7] (HT:50-53). Cummins testified
that “[t]he only two people that write in the road history as long as
I’ve been there were the Resident Engineer and myself, and like I said,
usually it’s done on an annual, once a year, and we usually sit down
together and try and remember the projects that transpired within that year so
we can put them in the book” (HT:56). When asked if the road history is
changed or updated, Cummins responded:

“[o]h yeah. You can look in here, you’ll see lots of cross outs,
white outs [sic]. It’s only for to make [sic] our knowledge better. Any
mistakes that we see basically will be changed because it doesn’t matter.
It’s only for us to use. It’s not for anybody else to use.
It’s ours to use it within the residency. *** If we find a mistake, we
will correct it.”

(HT:57). He explained that the road history is not an engineering document or
the equivalent of a record plan or proposal. He testified that they try to get
the road history to conform to the proposal or record plan, but sometimes the
exact measurements in the field are off by a reference
marker.[8] For example:

“if you happen to have an extra truck in a paving project, they’re
not going to send it back to the plant. They might make the truck go an extra
reference marker.”

(HT:58). Therefore, the proposal and the actual paving would not be in
conformity, “but it really doesn’t matter because you know
you’re getting the right ballpark for what we use this for *** as our tool
to do our job” (id.).

Cummins testified that exhibit GGGG, page 1, was the road history that he
provided in response to a request made in the Cueva claim. When asked if he had
inspected the roadway prior to providing the history, he responded,
“probably not” (HT:61). Cummins was then asked to reconcile the
differences between the Cueva road history and the DeNardo road history or the
road history as it exists in DOT’s binder. Cummins acknowledged that the
road history in DOT’s binder, which is the same as the DeNardo road
history, is different from the Cueva road history (HT:62). Cummins stated that
the Cueva road history was a copy of DOT’s road history as it existed in
2004. The information had been taken from the proposal which called for paving
up to reference marker 2050. Therefore, “we put it down as 2050 figuring
that’s where they were going to go” (HT:63). Cummins explained that
exhibit JJJJ is the proposal for the 2003 project referenced in the Cueva road
history (Ex. GGGG, p. 2) which was supposed to go from reference marker 2009
through 2050 and which Cummins relied upon in making those notations in the road
history (HT:77-79). He explained that they had the proposal “in [their]
hands. So rather than drive 15 miles away or whatever, we used that. *** And
that should have been close enough ***” (HT:78). Cummins maintained that
this was their normal custom and practice.

Cummins further explained that exhibit GGGG, page 23, the DeNardo road history
dated July 2006, showed that the reference markers were corrected after an
investigation in 2005 of an unrelated accident (id.). Cummins testified
that there had been an accident between reference markers 2049 and 2050 and
Cummins and Temple made a physical inspection of the roadway. It was then that
they discovered that DOT’s road history was incorrect and that obviously
the first paving had gone beyond what had been called for in the proposal and
the reference markers recorded in DOT’s binder. Cummins testified:

“we saw basically that the reference marker was off by one because you
could tell right where the pavement ends because there’s a joint. One
pavement is different color than the other and the joint is right there. So we
knew we were off. So we said, hey, let’s correct it and make it right.
*** Which is what we did. So we changed it to the correct one knowing that,
obviously, we didn’t go to what the proposal called for, we went an extra
reference marker, beyond. So the first project was off by, let’s say,
three, four hundred feet, whatever. So we just corrected it.”

(HT:64-65). He continued:

“we changed it in 2005 when we found that the contract actually ended one
reference marker off from where it was supposed to end. Not that it really
matters where it ends, but I’m saying like if you have a truck, you just
run it out and you end at a different spot. *** And that’s what
happened.”

(HT:78). He further explained:

“we didn’t want to keep the book to be inaccurate because of where
we were supposed to go but didn’t go. So we just changed it to make it to
where it was, which is where the road does currently meet. *** So now the road
history is perfect.”

(HT:68).

Cummins testified that he used a little white-out and then wrote over the
original. He testified that this was their normal custom and practice.
However, he could not specifically recall whether he or Temple had made the
change to the road history (HT:97-98). He only knew that it was a mistake that
they both had observed and decided to correct. He stated:

“[i]t’s all in here. You can see there’s lots of cross outs
and there’s lots of white out at various roads, because it’s only
ours. It’s for us. As long as we can read it that’s all that
matters to us.”

(HT:69). Cummins conceded that he was aware that road histories are relied
upon by litigants and experts and that they are used in court (HT:80). He also
conceded that when the request was made for the road history in the Cueva case
in 2004, Cummins was aware that the claim involved a fatal accident (HT:81).
While Cummins did not specifically recall walking the roadway with Teliska a
week after the Cueva accident, Cummins conceded that he probably had walked the
roadway (HT:81). Cummins did not notify anyone who had received the Cueva road
history that it had subsequently been corrected. He explained that,
“[w]henever anybody asks for a road history, I give it to them as it
stands at that time” (HT:74). When asked if it is his practice to notify
those to whom he has given a road history, whether that history has been changed
or updated, he responded, “[a]bsolutely not. *** I just give the people
what I have. It’s correct at the moment that I give it to them”
(HT:75). He explained that once he has provided the requested road history, his
role is completed and he is not continuously engaged in that particular case or
its outcome. When asked to explain why the road history is turned over if it is
basically just a tool used internally by the department, Cummins
responded:

“I really couldn’t tell you that. I don’t really know why it
is. Someone must have found out that it’s something that we have so they
like to see it. *** Maybe they think it’s useful. I don’t know
why.”

(HT:76).

Upon request from counsel to review exhibit HHHH with the initials
“JD,” Cummins responded that he had not initialed “JD”
(HT:88). When asked who had, he responded, “[c]ouldn’t tell
you” (id.). He stated that sometimes the secretary who types a
memorandum puts his initials on it. He explained:

“[m]any times what happens is I’ll leave my desk with typing for her
to do during the day and I’ll say, this has to get out today, and what
will happen is she’ll just put – she’ll put my initials so
that it doesn’t get held up, because the mail only goes over once a day.
So as long as I told her it’s good, she’ll type it and she’ll
just initial it.”

(HT:88-89). When asked if she customarily initials “JD,” Cummins
responded, “I don’t know how she signs it” (HT:89). When
asked if he signed his initials “JD,” Cummins responded:

“[n]o. Never in a million years did I ever sign JD. *** Because
that’s not my name, JD. It’s JDC.”

(HT:90). Claimant’s counsel then asked, if perhaps the secretary had made
a mistake and Cummins responded, “I guess. It wasn’t me”
(id.). When asked to explain why “JD” appeared on exhibit
HHHH (the original with “JD” handwritten in blue ink) and
“JDC” appeared on exhibit GGGG, page 1 (the photocopy submitted
pursuant to Court order) and whether or not Cummins had added the
“C” to the subsequent document, Cummins responded:

“[c]ouldn’t tell you. I don’t know whether it was me or
somebody else. Somebody just corrected it. *** I can’t tell whether it
was me.”

(id.).

When asked to verify the correctness of the DeNardo road history, Cummins
stated: “[j]ust drive out to the road and look. *** It’s
there” (HT:112). Cummins further noted that the aerial photograph of
Route 115 (Ex. TT) shows the difference in the color of the pavement where one
paving ended and the other began (HT:65-68).

Cummins emphasized that the road history was an internal document for
DOT’s own use. He stated:

“I think I stated that three or four times, but I’ll say it again.
It’s used for our – our tool to make our job done easy, because if
it was something that had to be a State document that you’d have to have,
every residency would have it. There are residencies that don’t even have
this. So it is not something that is mandated, and it’s not like a form
or a legal document. It’s just like me keeping a diary or something of
what we do. We use it.”

(HT:118).

Michael Temple testified that he has worked for DOT since 1984 and has been
the Resident Engineer in Residency 8-2 since 2005. In the spring of 2005, he
and Cummins went to Route 115 to gather background information about an
accident unrelated to this claim. As a result of their investigation, they
noticed a discrepancy between the original road history recorded in DOT’s
binder and what was actually in the field. As a result, either he or Cummins
made a change to the road history binder (HT:135). They had discussed that
change and one of them corrected it, but Temple did not recall who had done the
correction (HT:136). Temple testified consistently with Cummins’ account
regarding the two paving projects and the reference markers. The change was
just to correct an error. He did not recall if the correction was critical to
the case they were investigating. After the change, they did not send a copy of
the corrected road history to Kocan. They just provided the background
information that had been requested and a road history had not been requested
(HT:146-47).

Temple learned about the DeNardo claim sometime in 2005. He did not know,
however, that the Cueva road history had been provided to claimant. He only
reviewed the DeNardo road history provided in this claim to the extent that it
was attached to his memo; he did not review the details (HT:157). While he knew
that the road history had been corrected, he did not know that the incorrect
road history (the Cueva road history) had been sent out previously in this case
(HT:157-60).[9] Temple did not recall doing an
inspection of the road pursuant to a request for a road history in this case
(HT:148). It was possible he had, but he did not recall.

When asked to compare exhibit HHHH and exhibit GGGG, page 1, he could not
state who had added the initial “C” that appeared on exhibit GGGG,
page 1 (HT:154). Temple did not write the initial (HT:155).

Analysis

“The nature and degree of the penalty to be imposed pursuant to CPLR
3126 for failure to comply with discovery demands and orders is within the trial
court's discretion” (Brown v United Christian Evangelistic Assn.,
270 AD2d 378, 379). “[T]he drastic remedy of striking an answer is
inappropriate absent a clear showing that the failure to comply with discovery
demands is willful, contumacious, or in bad faith” (Garnett v Hudson
Rent A Car, 258 AD2d 559, 559). Absent willful and contumacious conduct,
the sanction of dismissal of a pleading may be imposed if a party has been so
prejudiced that dismissal is necessary as a matter of fundamental fairness
(Friel v Papa, 36 AD3d 754, 755).

Upon review of all the evidence presented, including listening to the
witnesses testify and observing their demeanor as they did so, the Court finds
that defendant’s failure to comply with CPLR 3101(h) was inadvertent and
not willful. Notably, defendant presented the altered road history at the
Court’s pretrial marking conference and claimant stipulated that it would
be received into evidence at trial without objection. Thus, neither counsel for
claimant nor defendant realized that the road history marked as
defendant’s exhibit OOO was different from the road history that claimant
had received during discovery. It was not until the liability trial had
commenced that the discrepancy between the road histories was discovered.

The Court finds claimant’s argument, that defendant deliberately
manufactured false and fraudulent evidence by altering the road history, to be
unsupported by the record (cf.Garnett v Hudson Rent A Car, 258
AD2d 559, supra). Indeed, as the Second Department held in Ahroni v
City of New York, 175 AD2d 789, 790, “the lack of willfulness on the
part of the [defendant] in its disclosure delays is best illustrated by the fact
that the documents demanded were potentially exculpatory to the [defendant],
which therefore had no reason to intentionally resist their disclosure.”
So too here, there is an absence of willfulness evidenced in defendant’s
disclosure delay. In fact, once the failure to disclose the updated road
history was realized, defendant promptly attempted to remedy the oversight and
was forthcoming in providing claimant with additional paving records which were
faxed directly to the Court from DOT during the Court’s lunchtime recess.
Furthermore, claimant failed to demonstrate that the modification to DOT’s
road history was done in bad faith or that “said modification rendered
[claimant] ‘prejudicially bereft of appropriate means’ to prove
[his] claim[]” (Denoyelles v Gallagher, 40 AD3d 1027, 1027, quoting
DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53).

Here, the credible evidence established that DOT’s road history was
modified when DOT’s Resident Engineer and Assistant Resident Engineer
conducted a field inspection of the roadway in regard to an unrelated accident.
It was then that they observed for the first time that the reference markers
which they had recorded in DOT’s binder, based upon the proposal, deviated
by one reference marker from the actual road work that had been completed. It
was established that the proposals are routinely relied upon and that often the
reference markers recorded in the road history are subsequently adjusted to
reflect the actual work performed. Contrary to claimant’s position, this
case does not present circumstance of fraud or an attempt to deceive. Rather,
DOT’s modifications were clarifying and correcting their internal record
of the road history to accurately reflect that which was readily observable upon
inspection of the roadway. While claimant was outraged at DOT’s routine
practice of using white-out to make these corrections, the Court does not find
such practice to offend the senses. Indeed, if the records were computerized,
there would be no need for white-out and the records on any particular date
would reflect the latest changes. It is also further noted that DOT is not
required by law to maintain a road history; therefore it should not be
substituted for an actual inspection of the roadway. Indeed, an inspection of
the roadway on behalf of claimant would have revealed the different colors in
pavement which evidenced where one paving project had ended and the other began
(seeChiu Ping Chung v Caravan Coach Co., 285 AD2d 621
[defendant’s destruction of evidence did not deprive plaintiff of ability
to prove his claim as he was provided with DOT’s inspection reports]). It
was not established that the modification was done in collusion in an attempt to
deceive or to alter the road history which claimant had received during
discovery. Rather, the modification was made in 2005 to DOT’s original
road history and then, pursuant to a request from defendant, the DeNardo road
history was sent out at a subsequent date for defendant’s expert to
review.

It is also noted that while claimant received the Cueva road history in
discovery, claimant did not seek to mark it as an exhibit to be offered into
evidence at trial, nor did claimant’s expert indicate any reliance upon
the Cueva road history. Thus, claimant’s argument that the road history
was central to proving his case is not persuasive (seeSoto v New York
City Tr. Auth., 25 AD3d 546, 547 [plaintiffs failed to establish defendant
negligently or intentionally destroyed key evidence thereby depriving them of
their ability to prove their claim]; Friel v Papa, 36 AD3d 754,
supra at 755 [plaintiffs failed to show that the destroyed evidence was
central to their case or that they were prejudiced by its destruction]). Thus,
claimant has not proven that the delay in learning of the modification has
deprived claimant of the ability to establish a prima facie case (seeHernandez v City of New York, 43 AD3d 868; Denoyelles v Gallagher,
40 AD3d 1027, supra). Indeed, claimant concedes at page 25 or his
post-sanctions hearing memorandum that he can put on a prima facie case.
Claimant also argues for the alternative sanctions of: precluding
defendant’s expert from testifying; precluding defendant from offering any
evidence of the condition of the shoulder at the time of the accident; and
precluding defendant’s use of any road history to support its
defense.

The Court finds that the untimely discovery of the modified road history may
be remedied by affording claimant sufficient time to permit his expert to review
the DeNardo road history and the site before the trial resumes on October 27,
2008.

[1]. A claim was filed in the Court of Claims on
behalf of Eric Cueva in 2004, Claim No. 109956.

[2]. Exhibit HHHH was dated December 27, 2004 and
referred to the Cueva claim (hereinafter the Cueva road history), while exhibit
OOO was dated July 17, 2006 and referred to the DeNardo claim (hereinafter the
DeNardo road history).

[3]. The parties used the term
“white-out” to refer to the liquid correction fluid used; however
there is no evidence that the product used was indeed Wite-Out manufactured by
the BIC Corporation.

[4].Claimant concedes that during Temple’s
examination before trial, the issue was raised as to whether claimant had
received all the paving records for the curve of Route 115 and that
claimant’s attorney represented that an official demand would be sent to
defendant; however claimant’s attorney never sent a written demand.

[5]. Notably, this request was made nearly three
years post-accident and did not seek a road history or specifically request
paving records.

[6]. References to the pages of the sanctions
hearing transcript will be preceded by “HT.”

[8]. Reference markers are placed at distances of
approximately 528 feet. Not all reference markers are exactly 528 feet apart
because some are shortened to fit the roadway and others are extended (HT:58,
100).

[9]. Temple clarified his prior testimony that,
at the time of his deposition, he was aware that claimant had received the Cueva
road history in this claim and that it was inconsistent with the subsequently
amended DeNardo road history (HT:148-149, 158-160).